U. S. EQUAL EMPLOYMENT v. SIDLEY AUSTIN BROWN & WOOD

The opinion of the court was delivered by: JAMES ZAGEL, District Judge

MEMORANDUM OPINION AND ORDER

In July 2000, the Equal Employment Opportunity Commission
("EEOC") opened a direct investigation into Defendant Sidley
Austin Brown & Wood's ("Sidley") compliance with the Age
Discrimination in Employment Act ("ADEA") in connection with a
downgrading of 32 of its partners and a change in its mandatory
retirement age. Specifically, Sidley told 32 partners that they
had to either accept a downgrade in their status from partner to
counsel or senior counsel, or leave the firm. At the same time,
Sidley reduced its mandatory retirement age from 65 to a sliding
scale between 60-65.

The EEOC commenced its work after it was widely reported by the
media in late 1999 that the status of Sidley's older partners had
been changed to create opportunity for younger lawyers at the
firm and after the EEOC received a confidential complaint from
one of the affected partners. On July 5, 2000, the EEOC notified
Sidley of the investigation in a letter that included a
designated charge number and was accompanied by a Request For
Information. After receiving only partial responses from Sidley,
the EEOC served it with a subpoena. This ultimately led to an enforcement action before Judge Lefkow and
an appeal to the Seventh Circuit. After receiving documents
provided in accordance with the courts' orders and after
completion of its investigation, the EEOC issued a Letter of
Determination finding reasonable cause to believe that Sidley had
violated the ADEA by downgrading certain partners on account of
their age and by maintaining a mandatory retirement age. On
September 29, 2004, after conciliation discussions between the
parties proved unsuccessful, the EEOC issued to Sidley a Notice
of Failure of Conciliation, and on January 13, 2005, filed this
lawsuit seeking monetary damages and injunctive relief.

Sidley is now seeking partial summary judgment on the EEOC's
claims involving individual relief. Summary judgment is proper
when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-323 (1986). The question presented
in Sidley's motion  whether the EEOC may pursue individual
relief for persons who failed to file charges under the ADEA and
are now barred from bringing their own individual suits  is a
purely legal one, requiring that I determine whether EEOC v.
North Gibson Sch. Corp., 266 F.3d 607 (7th Cir. 2001) was
overruled by EEOC v. Waffle House, Inc., 534 U.S. 279 (2002).

In North Gibson, the Seventh Circuit held that the EEOC could
not recover individual relief under the ADEA if none of the
alleged victims had filed timely charges of discrimination.
266 F.3d at 619-20. In that case, five of the seven claimants
represented by the EEOC had not filed any ADEA charges and the
remaining two had made untimely filings. The North Gibson
decision was based on the premise that when the EEOC pursues an
individual claim under the ADEA, it "steps into the shoes of the
individual" and becomes that individual's representative. Id. at 615. This privity, as the courts have put it, is created
by the ADEA's distinctive enforcement scheme wherein the right of
the individual to bring an ADEA action is terminated upon the
commencement of such an action by the EEOC. Id. The Court of
Appeals reasoned that since the EEOC was acting in a
representative capacity, it should not be able to seek monetary
relief on behalf of an individual who had no right to relief, as
there were no "shoes" into which the EEOC could step. Id. at
615. Because each of the seven suits would have been procedurally
barred, the Court of Appeals held that the EEOC could not seek
monetary relief on behalf of those individuals. Id. at 616. In
its opinion, the Court of Appeals explicitly differentiated the
EEOC's right to seek such individual relief from the EEOC's right
to seek injunctive relief, stating that "[w]hen the EEOC sues on
its own behalf to obtain an injunction that prohibits
discrimination, it promotes the public interest because its
`interests are broader than those of the individuals injured by
discrimination.'" Id. (quoting EEOC v. Harris Chernin, Inc.,
10 F.3d 1286, 1291 (7th Cir. 1993)).

If there were no question concerning the ongoing validity of
North Gibson, the individual relief sought by the EEOC in this
case would certainly be barred. Here, the EEOC received a
confidential request for an investigation but never an ADEA
charge. Since the time for such charges has long since expired,
none of the 32 Sidley partners affected by the change in
retirement policies would be entitled to seek relief from this or
any other court, and I would be compelled to grant Sidley's
motion.

There is, however, the Supreme Court's decision in Waffle
House. In that case, the Supreme Court held that the EEOC could
seek monetary relief for individuals whose claims were barred
because each had signed a mandatory arbitration agreement with
his or her employer. Waffle House, 534 U.S. at 295. The Court found that the
Americans With Disabilities Act ("ADA") made "the EEOC the master
of its own case" and "confer[red] on the agency the authority to
evaluate the strength of the public interest at stake." Id. at
291. The Court further found that "it is the public agency's
province  not that of the court  to determine whether public
resources should be committed to the recovery of victim-specific
relief." Id. at 291-92. The Court emphasized that the EEOC may
seek "to vindicate a public interest . . . even when it pursues
entirely victim-specific relief." Id. at 296. With this
reasoning, the Court put an end to the distinction recognized in
earlier cases, like North Gibson, between the EEOC's ability to
seek individual monetary relief and its ability to seek
injunctive relief. In this way, the Court makes it clear that the
EEOC's right to bring suit seeking individual monetary relief
goes beyond that of the individual and reaches the territory of
public interest, thereby allowing the EEOC to seek relief for
individuals, like the affected Sidley partners in this case, who
could not, for any variety of reasons, do so themselves.

Sidley, of course, argues that the Waffle House decision is
applicable to only those cases in which the EEOC is seeking
monetary relief on behalf of individuals who are subject to
arbitration agreements.*fn1 This notion is dispelled by the
Seventh Circuit's decision in EEOC v. Bd. of Regents of the Univ. of Wis., 288 F.3d 296 (7th Cir.
2002). In BOR, the Court of Appeals applied the reasoning
developed in Waffle House to a case involving sovereign
immunity  an area of law wholly unrelated to arbitration
agreements. In determining the EEOC had an independent right to
sue the state of Wisconsin (and therefore the board of regents of
the University of Wisconsin), the Court of Appeals relied heavily
on the language from Waffle House stating that the EEOC was
"the master of its own case" and could seek "to vindicate a
public interest, not simply provide make-whole relief for the
employee, even when it pursues entirely victim-specific relief."
Id. at 300 (quoting Waffle House, 534 U.S. at 296). The Court
of Appeals found this reasoning to forestall any argument that
the EEOC was merely "standing in the shoes of the individuals" or
was "acting in privity with them as their representative." Id.
at 299-300.

Yet, Sidley urges me to base my opinion on exactly the same
kind of privity logic that failed to persuade the courts in
Waffle House and BOR. Sidley argues that I should deny the
EEOC the right to seek individual monetary relief on behalf of
the affected Sidley partners because the partners themselves have
no right to sue. I disagree. Waffle House makes clear that
EEOC's ability to seek monetary relief on behalf of individuals
is derived from its own statutory rights to advance the public's
interest and is unrelated to any individual's right. I find it
clear enough from the holdings in both Waffle House and BOR
that the privity arguments seen in North Gibson are no longer
applicable and that Waffle House does in fact overrule that
decision. In BOR, the Seventh Circuit did contemplate curtailing the
EEOC's public interest based rights when there is another
compelling, countervailing interest at issue. 288 F.3d at 300. As
the Court notes, it would have to be more important than the
right to arbitration or sovereign immunity. Id. Sidley contends
that allowing the EEOC to seek monetary relief for individuals
who are barred from doing so themselves because they have failed
to file charges within the statutorily allowed period contravenes
an employer's interest in reasonably speedy resolution of
discrimination claims, an interest that underlies all of our
discrimination statutes. Sidley claims that allowing the EEOC to
revive untimely claims obliterates the otherwise strictly
enforced statutes of limitations associated with Title VII, ADA,
and ADEA cases. While, in the abstract, Sidley's argument does
carry some weight, in the context of this case, it does not have
much force. The EEOC began investigating Sidley's retirement
practices approximately seven months after the changes to its
policies, brought about in late 1999, were widely broadcast in
the media and after receiving a confidential complaint. On July
5, 2000, the EEOC notified Sidley of the investigation with a
letter that was accompanied by a document request. Over the next
two years, the EEOC and Sidley battled over that document
production. In July 2004, the EEOC completed its investigation
and sent a Letter of Determination to Sidley stating that it had
found reasonable cause to believe Sidley's retirement policies
violated the ADEA. After engaging in unsuccessful conciliation
discussions, the EEOC filed this suit on January 13, 2005.

Throughout, these proceedings have been of great interest not
only to Sidley but also to most other large law firms across the
country. It would be difficult for Sidley to argue that the
EEOC's suit has come as a surprise or that the EEOC's claims
concerning their new retirement policy are somehow stale or that
it had no reasonable opportunity for a speedy resolution of this matter. This is almost certainly why Sidley focuses on the
possibility that the EEOC might bring their retirement policies
dating back to 1978 into the suit. This argument, however, should
really be directed toward determining the relevant class of
individuals who may be properly represented by the EEOC in this
suit. There may come a time when it is appropriate for me to set
some temporal limits on the class of persons who may be
represented in this case. But, that time is not now. The
possibility that the individual claims of some partners affected
by Sidley's longstanding retirement policies may be too remote
for this case does not justify throwing out all the individual
claims of partners affected by Sidley's newly implemented
retirement plan. Accordingly, I find that concerns over bringing
stale claims do not override the EEOC's right to advance the
interests of the public by seeking individual relief for at least
some individuals in this case.

Sidley's Motion for Summary Judgment is DENIED.

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